Case T-452/08: Action brought on 6 October 2008 — DHL Aviation et DHL Hub Leipzig/Commission
Date: 2008-10-06
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), airport, common market, control of State aid

C 6/34

EN

Official Journal of the European Union

10.1.2009

The applicant, moreover, claims that
the contested decision
ignores the existence of the applicant's rights and sets up a
system through which the applicant's right to use the 2 GHz
spectrum is infringed. Moreover, it is submitted that the decision
puts in great jeopardy the applicant's considerable investments
to date and forces the applicant to participate to the EU tender
process while interfering in the day-to-day running of its busi-
ness.

Further, the applicant claims that by adopting the contested
decision, the defendant has acted disproportionately and in a
discriminatory way, contrary to the applicant's legitimate expec-
In fact, the applicant contends, that contrary to its
tations.
rights and/or legitimate expectations, the contested decision is
founded on the premise that the whole of the 2 GHz spectrum
is available for allocation, since it provides for the selection and
authorisation of operators of MSS to utilise the entire range of
frequencies existing in the 2 GHz spectrum.

In addition, it is submitted that the contested decision violates
the applicant's rights to the peaceful enjoyment of the benefits
accorded to the ICO-P system as a result of recognition of the
recording by the ITU in the Master International Frequency
Register maintained by the ITU, and other similar property
rights, contrary to Article 1 of Protocol 1 of the European
Convention of Human Rights and international law.

(1) OJ 2008 L 172, p. 15.

applicant's appeal and declared the Community design ‘Tour’
No 29178-0002 invalid;

— declare Community design ‘Tour’ No 29178-0002 in

class 09-01 valid.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of
invalidity has been sought: Community design No 29178/0002
for ‘phials’

Proprietor of the Community design: The applicant

Applicant for the declaration of invalidity: Heinz-Glas GmbH

Trade mark right of applicant for the declaration: An unregistered
phial named ‘Empire’ (reference number F 3990)

Decision of the Cancellation Division: Declaration of invalidity of
the Community design

Decision of the Board of Appeal: Appeal dismissed

Pleas in law: The Community design does have the requisite
novelty; the documents which Heinz-Glas GmbH submitted to
show that it disclosed to the public a prior design of an identical
phial have no evidential value.

Action brought on 6 October 2008 — Coverpla v OHIM —
Heinz-Glas (design)

Action brought on 6 October 2008 — DHL Aviation et
DHL Hub Leipzig/Commission

(Case T-450/08)

(2009/C 6/69)

Language in which the application was lodged: French

(Case T-452/08)

(2009/C 6/70)

Language of the case: English

Parties

Parties

Applicant: Coverpla (Nice, France) (represented by: P. Greffe and
M. Chaminade, lawyers)

Applicant(s): DHL Aviation NV (Zaventem, Belgium) and DHL
Hub Leipzig GmbH (Schkeuditz, Germany)
(represented by:
A. Burnside, Solicitor and B. van de Walle de Ghelcke, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Defendant(s): Commission of the European Communnities

Other party to the proceedings before the Board of Appeal of OHIM:
Heinz-Glas GmbH (Kleintettau, Germany)

Form of order sought

Form of order sought

— Annul the decision of the Third Board of Appeal of 7 July
2008 (Case R 1411/2007-3) in so far as it dismissed the

— Annul the decision in so far as it identifies the applicants as
beneficiaries of State aid that is considered to be incompa-
tible with the common market, and in so far as the decision
orders Germany to recover the alleged State aid, and

— Order the Commission to pay the costs.

10.1.2009

EN

Official Journal of the European Union

C 6/35

Pleas in law and main arguments

The applicants seek partial annulment of
the Commission's
Decision of 23 July 2008 in Case C 48/06 (ex N 227/06) —
Germany, in so far as it identifies the applicants as beneficiaries
of the State aid that is considered to be incompatible with the
common market and in so far as the decision orders Germany
to recover the alleged State aid.

On 5 April 2006 Germany notified measures undertaken by the
publicly-owned Leipzig Airport and Land Sachsen concerning
the construction and operation of the new southern runway at
Leipzig Airport, relating; in particular, to the establishment of
the European hub of
the DHL group for its express parcel
operations at the said airport. The notified measures were, speci-
fically, the ‘Framework agreement’ (1) concluded between the
airport and DHL Hub Leipzig as well as a ‘Comfort letter’ issued
by Land Sachsen in favour of the Leipzig Airport and DHL Hub
Leipzig to pay a set amount of damages in the event that DHL
Hub Leipzig would no longer operate as foreseen at the airport.
The applicants claim that, as a consequence of the contested
decision, they are deprived of the contractual obligations under-
taken by Leipzig Airport and Mitteldeutsche Flughafen (‘MFAG’)
under the Framework Agreement as well as of the guarantee
provided by the Comfort Letter and also subject to recovery of
the alleged State aid.

The applicants raise the following pleas:

In they first and second pleas, the applicants submit that the
Commission committed manifest errors in the application of
Article 87(1) EC. By characterising the ‘Nightflight clause’ and
the ‘90 % Clause’ as State aid,
the Commission failed to
correctly apply the said provision according to the applicant.
The applicants submit that the Commission manifestly erred in
the application of the private investor test by holding that the
point of reference for it was November 2004 and not the actual
date of the conclusion of the Framework agreement. Further,
the applicants claim that the Commission manifestly erred by
holding that, regardless of the point of reference for the invest-
ment decision, the so-called unlimited guarantees provided in
the Framework agreement constituted State aid in any event,
since risks that DHL assumed under these provisions were
financed by a capital injection which constituted State aid itself.

On the basis of its second plea, the applicants claim that the
Commission failed to correctly apply Article 87(1) EC, by
holding that the Comfort letter constitutes State aid without
considering the usual business practice between holding compa-
nies and subsidiaries.

In its fourth plea, the applicants submit that the Commission
made a manifest error of assessment in ordering the recovery of
the alleged State aid.

In its fifth plea, the applicants submit that the Commission
infringed Article 235 EC by holding that Articles 8 and 9 of the
Framework Agreement contain the alleged State aid and by
these provisions are not compatible with the
deciding that
common market and must therefore be terminated.

this agreement

(1) According to the communication published in the OJ 2007 C 48,
the obligation to
p. 7,
construct the new southern runway and further obligations in terms
of capacity and operation. In case of non-fulfilment (e.g.
if night
flights are banned by the regulatory authorities), DHL can claim
compensation of its losses and damages.

imposes on the airport

Action brought on 9 October 2008 — Wilfer v OHIM

(Case T-458/08)

(2009/C 6/71)

Language in which the application was lodged: German

Parties

Applicant: Hans-Peter Wilfer (Markneukirchen, Germany) (repre-
sented by A. Kockläuner, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Form of order sought

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market of 25 July
2008 in Case R 78/2007-4 in its entirety;

— order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Figurative mark representing the
head of a guitar using the colours silver, grey and brown, for
goods in Classes 9 and 15 (No 2 639 821)

In its third plea, the applicants submit that the Commission
infringed Article 253 EC by not considering all relevant factors
when characterising the Nightflight Clause, the 90 % Clause and
the Comfort Letter as State aid.

Decision of the Examiner: Rejection of the registration

Decision of the Board of Appeal: Rejection of the appeal